SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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ALLSTATE INDEMNITY COMPANY, ALLSTATE INSURANCE COMPANY, and ALLSTATE NEW JERSEY INSURANCE COMPANY, Plaintiffs

- Respondent s ,

v. KAMEL KAZAN, D.C. , SALVATORE SANTANGELO, D.C. , NART TSAY, D.C., MIGUEL PAGA N , D.C., JOHN K. BURGER, D.O., JOAN VAN RAALTE, D.M.D., WAYNE MILLER, D.C., TATIANA SHARAHY, M.D., JENNIFER O'BRIEN, GIOVANNI DURAN, PTA, GARY REYES, BERGEN PHYSICAL THERAPY, LLC, PATERSON CHIROPRACTIC CENTER, PC, HEALTH ONE MEDICAL & PHYSICAL REHABILITATION, LLC, INNOVATIVE SPINE CARE, LLC, INNOVATIVE SPINE CARE MEDICAL CENTER, LLC, d/b/a PURE ANTIAGING MEDICAL CENTER, JOAN VAN RAALTE, D.M.D, PC, WILLIAM G. VANDERVEER, and VANDERVEER SALES AND MARKETING, LLC, NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet , this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36

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Defendants, and TAE YOUNG HONG, D.C. and MODERN ACUPUNCTURE, LLC, Defendants

- Appellants, and
ALLSTATE PROPERTY AND CASUALTY COMPANY, NORTHBROOK INDEMNITY, ALLSTATE FIRE & CASUALTY INSURANCE COMPANY, ENCOMPASS INSURANCE COMPANY, ENCOMPASS PROPERTY AND CASUALTY INSURANCE OF NEW JERSEY, and ENCOMPASS INSURANCE COMPANY OF NEW JERSEY, Plaintiffs

.

________________________________

Submitted September 16, 2019

– Decided Before Judges Rothstadt, Moynihan , and Mitterhoff. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L

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- 13. Ameri & Associates, LLC, attorneys for appellants (Dominick Succardi and Jonathan J. Mincis, on the briefs). January 6, 20 203 A

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PER CURIAM In this action filed by plaintiff s that alleg ed insurance fraud against a group of medical professionals and their r elated businesses , d efendants Tae Young Hong, D.C. and his company , Modern Acupuncture, LLC appeal from the Law Division's June 11, 2018 order denying their Rule 4:50

- 1(f) motion to vacate an earlier order granting plaintiff s summary judgment

. In support of their motion to vacate, defendants argued that they did not opp ose plaintiffs' motion for summary judgment
because their prior attorney was negligent and failed to respond to plaintiffs' motion without telling them . The motion judg e rejected their argument, finding that defendants did not demonstrate exceptional circumstances because they were not

" blameless litigants " and they failed to prove that their prior counsel's negligence was the rea son that plaintiffs' motion went unanswered

. We affirm substantially for the reasons expres sed by the motion judge in her June 11, 2018 written decision issued with the order under appeal. Plaintiffs filed their original complaint against defendants in 2013 , and they filed an a nswer in 2014

. In April 2017, plaintiffs filed their motion for4 A

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sum mary judgment

. The motion judge granted the unopposed motion in June
2017 and awarded plaintiffs approximately $1.6 million in damages.
On the date scheduled for trial of plaintiffs ' remaining claims as to other parties, defendants ' prior attorney file d a motion in limine to vacate the judgment

. According to defendants, " [ t ] hroughout the pendency " of this action , the ir prior attorney was difficult to contact and rarely updated them as to the status of their case. T hey also alleged that he did not advise them o f plaintif fs' motion for summary judgment, about which they were unaware until October 2017, when their bank informed them that their accounts had been frozen pursuant to plaintiffs' judgment lien and levy

. When defendants contacted th eir attorney , he allegedly informed them that the accounts were frozen in error and that he would f ile a motion to remove the levy, which he did as th e motion in limine , without notice to his clients or to plaintiffs

. In the attorney 's supporting certific ation , he stated that defendants had filed a timely answer to plaintiffs' complaint , engaged in discovery , and did not respond to the summary judgment motion because one of the co

- defendants , Gary Reyes, was in default and had not participated in discovery. The motion judge denied the in limine motion to vacate on October 2,
2017 . In her order , the judge stat ed that the motion had been filed on the actual5 A

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trial date , without proper notice to the other par ties , " seemingly without any legal support , " and that defendant s "have coasted along the litigation and did not oppose [the] summary judgment decision or order, nor did they timely move to reconsider." After they secured new counsel, defendants filed anoth er motion in January 2018 under Rule 4:50

- 1(f) for relief from the final judgment, arguing that except ional circumstance s existed because their former attorney fail ed to oppose the summary judgment motion

. According to defendants ' supporting certification, despite their efforts to be in contact with their former attorney,

" [ t ] hroughout the pendency" of the matter, he never communicated with them or otherwise kept them informed about the litigation. However, t hey also stated that in April 2017 , before the summary judgment was filed , their attorney appeared with them at depositions. Defendants did not include any supporting documents reflecting their attempts throughout the years to contact counsel, nor information, if any, he could have filed in opposition to summary judgment sought by plaintiffs.6 A

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On June 11, 2018, the motion judge denied defendant's motion and issued a twenty

- three page written decision setting forth her reasons. 1 The judge determined that no exceptional circumstances were pr esent and that defendants were not blameless litigant s . The judge observed that defendants were not without the ability
to sue their prior attorney for any alleged wrongdoing, and t here were no facts or evidence demonstrating that the attorney committed m alpractice

— rather, the evidence "present[ed] the possibility of other reasons for not responding [ to ] the

. . . motion in 2017, including for strategic reasons." The judge concluded that, based on the record, defendants did not make
reasonable efforts to s tay apprised of the case status and the evidence in the record belied their contention that their attorney was ignoring them or that th ey were dissatisfied with his performance. A ccording to the judge, if it were true that counsel ignored them for over three years as defendants alleged , they wo uld have retained a new lawyer

. As the judge pointed out , defenda n ts stated their attorney represented them at an April 17, 2017 deposition, "notwithstanding [ defendants '] purported
dissatisfaction

. . . prior to that event."

1 The decision also addressed other post

- judgment motions relating to plaintiffs' collection efforts.7 A

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Characterizing defendants as not " unsophisticated litigant [s] , but instead

. . . learned professional [s] ," the judge stated it made " no sense" that t he y continued to pay legal fees for four years despi te repeatedly being ignored by their attorney. The judge found that defendants play ed a role in t he events that led to plaintiff s ' judgment by failing to take any action to insure their interests were prote cted. For those reasons, she denied their motion

. This appeal followed. On appeal, defendants contend that t h e y establ ished the exceptional circumstances r eq uired to vacate a judgment under Rule 4:50

- 1( f ) . They also
argue the motion judge erred by not a pplyin g our holdings in Jansson v. Fairleigh Dickinson Univ. , 198 N.J. Super. 190 (App. Div. 1985) , and Parker v. Marcus , 281 N.J. Super. 589 (App. Div. 1995) , by determining they were not blameless litigants and by requiring defendants to prove "a likelih ood of success on the
merits. " We disagree. We review the denial of a Rule 4:50

- 1 (f) motion for a clear abuse of discretion

. Hous

. Auth. of Morristown v. Little , 135 N.J. 274, 283 (1994) ; Piscitelli v. Classic Residence by Hyatt , 408 N.J. Super. 83, 102 (App. Div. 2009). An abuse of discretion occurs when a decision is "made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible
basis." U.S. B ank Nat'l Ass'n v. Guillaume , 209 N.J. 449, 467 (2012).8 A

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Rule 4:50

- 1(f) provides that " the court may relieve a party

. . . from a final judgment or order for

. . . any . . . reason justifying relief from the operation of the judgment or order." "The very essence of that subdivision is its ability to afford relief in exceptional situations." Hodgson v. Applegate , 31 N.J. 29, 41 (1959). In order to obtain relief under subsection (f)'s "catch

- all" provision, a movant must satisfy a heavy burden of demonstra ting "exceptional" circumstances. See Court Inv. Co. v. Perillo , 48 N.J. 334, 341 (1966); see also Hous

. Auth. of Morristown , 1 35
N.J. at 286; Badalamenti ex rel. Badalamenti v. Simpkiss , 422 N.J. Super. 86, 103 (App. Div. 2011 ). " [ B ] ecause of the importance

. . . attach[ed] to the finality of judgments, relief under Rule 4:50

- 1(f) is available only when ' truly exceptional circumstances are present.'" Guillaume , 209 N.J. at 484. "The rule is limited to 'situations in which, were it not app lied, a grave injustice would occur.'" Ibid. To determine whether exceptional circumstances exist, courts consider: "(1) the extent of the delay, (2) the underlying reason or cause, (3) the fault or blamelessness of the litigant, and (4) the prejudice that would accrue to the other party." Jansson , 198 N.J. Super. at 195. Rule 4:50

- 1(f) does not require the demonstration of a likelihood of success on the merits

. S ee Guillaume , 209 N.J. at 457

- 58 (stating that a meritorious defense must be demonstrated under Rule 4:50

- 1(a), but that only exceptional circumstances must be proved under Rule 4:50

- 1(f))

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In Parker and Ja ns son we addressed the need to protect a "blameless " litigant from the sins of his errant attorney by vacating dismissals of their complaints

. In Parker , we considered the blamelessness of a plaintiff whose attorney allowed the
case to be dismissed by failing to appear for an arbitration , failed to notify the client of the dismissal, l ater " apologized

. . . for lying, and explained that he had numerous personal and ethical problems. " Parker , 281 N.J. Super. at 592 . There , we found plaintiff to be a "blameless litigant" where "[h]e made every effort to keep in contact with his attorney during the pendency of his case and was assured that the matter had not been scheduled for trial because of a calendar backlog." Id. at 594 . W e fou nd exceptional circumstances based upon the plaintiff's attorney's malpractice in the handling of the plaintiff's case and the fact that the plaintiff likely had no remedy against the attorney who had since become disbarred. Ibid.
In Parker , we also descr ibed our holding in Ja ns son as follows:
P laintiffs' complaint in Jansson had been dismissed because their attorney failed to send answered interrogatories to defense counsel.

. . . [W]e held that plaintiffs were entitled to relief because they "were, themselv es, entirely blameless."

. . . [ W]e observed "[w]e believe that in the absence of demonstrable prejudice to the other party it is neither necessary nor proper to visit the sins of the attorney upon his blameless client. " [ Id. at 593

- 94 (fifth alteration in original) (quoting Ja ns son , 198 N.J. Super. at 196).]10 A

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With these guiding principle s in mind, we t ur n to the motion judge's reasoning here , and we discern no abuse of discreti on. We affirm substantially
fo r t he reasons expres s ed by the motion judge in her comprehensive decision. We add only the following comments.
A t the outset , we observe that to the extent defendants contend that t he motion judge denied their motion because they di d n ot pr ove that they were likely to be successful on the merits , we conclude that t he contention is belied by the record. In her compre hen sive written decision , the judge never addressed whether defendants established a meritorious defense or a likelihood of success on the merits and relied instead on the factors articulated in Parker

. However, the fact that defendants were not obligated to demonstrate a likelihood of success on summary judgment or a meritorious defense did not relieve th em of their obligation to establish an injustice if the judgment was not vacated. Guillaume , 209 N.J. at 484. To establish that injustice, defendants would have to demonstrate that there was a legitimate opposition to the summary judgment
motion that the ir attorney could have filed in order to protect defendants' interests. However, d efendants' motion did not contain any statement of the information counsel had in his possession or could have obtained that could have been used to file opposition to the s ummary judgment motion in 2017

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In her decision, t he motion judge concluded only that there were no exceptional circumstances , and defendants were not left without any remedy against their attorney as in Parker , whe re the plaintiff's complaint was dismissed and his attorney disbarred ; and in Jansson , whe re the plaintiffs' complaint was dismissed following their attorney's "willful[] fail[ure] to abide by his oath

. "
An d , defendants here were not blameless by virtue of their admission that for the four years their attorney did not keep them informed , they took no action to replace him or otherwise determine the status of their case. As we have previously observed, we will not find a litigant "blameless" where his " dilem ma [is]

. . . occasioned by his own dereliction or ambivalence ." Parker , 281 N.J. Super. at 595

. In short, we are satisfied, on this record, the motion judge's decision denying relief was not a clear abuse of her discretion. Rather, her decision was grounded in reason and supported by substantial credible evidence in the record. We discern no basis to disturb the judge's determination that she had a reasonable basis to withhold the extraordinary relief under Rule 4:50

- 1(f). Affirme d.